State v. Looney, 011521 KSCA, 122, 004

Docket Nº:122, 004
Opinion Judge:PER CURIAM:
Party Name:State of Kansas, Appellee, v. Damion K. Looney, Appellant.
Attorney:Mark Sevart, of Derby, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Green, P.J., Malone, J., and McAnany, S.J.
Case Date:January 15, 2021
Court:Court of Appeals of Kansas

State of Kansas, Appellee,

v.

Damion K. Looney, Appellant.

No. 122, 004

Court of Appeals of Kansas

January 15, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Jeffrey Syrios, judge.

Mark Sevart, of Derby, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Malone, J., and McAnany, S.J.

MEMORANDUM OPINION

PER CURIAM:

Following remand for resentencing from this court's decision in State v. Looney, No. 117, 398, 2018 WL 3485727, at *1 (Kan. App. 2018) (unpublished opinion) (Looney I), the trial court denied Looney's renewed request for a downward durational departure and refused to consider Looney's new trial motion under a belief that its consideration violated the Looney I mandate. Looney now appeals those decisions.

As to the denial of his downward durational departure motion, Looney argues that certain mitigating factors established that the trial court should have granted his downward durational departure motion at resentencing. Yet, for each of his convictions, the trial court imposed presumptive sentences under the Kansas Sentencing Guidelines Act (KSGA). Because this court lacks jurisdiction to consider the denial of a departure motion when the trial court imposes KSGA presumptive sentences, this issue is not properly before this court. State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011). Thus, we dismiss this argument for a lack of jurisdiction.

As to the trial court refusing to consider his new trial motion upon remand, Looney's new trial motion hinged on our Supreme Court's holding in State v. Hardy, 305 Kan. 1001, 390 P.3d 30 (2017), that trial courts should not view the evidence in the light most favorable to the State when reviewing a defendant's immunity motion. Our Supreme Court issued this holding while Looney's case was pending before this court in Looney I. And it is undisputed that in denying Looney's pretrial immunity motion, the trial court viewed the evidence in the light most favorable to the State. Thus, in moving for a new trial upon remand, Looney asked the trial court to reconsider the denial of his immunity motion under this intervening change of law. As he did below, Looney asserts that the Looney I mandate did not prevent him from making a new trial motion upon remand.

Nevertheless, for reasons stated below, Looney's argument about the trial court's refusal to consider his new trial motion upon remand is unpersuasive. So we affirm because the trial court did not err by refusing to consider Looney's new trial motion or, if it was error, the error was harmless. Thus, we affirm in part and dismiss in part.

Looney's Jury Trial

On July 28, 2015, the State charged Looney with the following: (1) the aggravated battery of Breanna Connell; (2) the aggravated battery of Quinten Edwards; (3) the aggravated battery of Davis McCoy; (4) the aggravated assault of Sean O'Neil; (5) the aggravated assault of Christian Wells; (6) animal cruelty; and (7) criminal possession of a firearm. Later, the State also charged Looney with criminal discharge of a firearm.

The State's charges against Looney stemmed from his violent altercation with his then-fianceé Connell and her friends-Edwards, McCoy, O'Neil, and Wells-late in the evening of July 23, 2015, and early in the morning of July 24, 2015. It is undisputed that during the evening of July 23, 2015, while at a bar with Connell and her friends, Looney sprayed mace in Connell's face, which resulted in his removal from the bar. Afterwards, Looney returned to his and Connell's shared home while Connell remained at the bar with her friends. Upon arriving home, Looney threw his and Connell's cat Nola against a wall so hard that he broke Nola's back, resulting in Nola's death. Looney ultimately pleaded guilty to animal cruelty for killing Nola; thus, this fact is undisputed.

Notwithstanding the preceding, sometime after killing Nola, in the early morning hours of July 24, 2015, Connell's friends dropped her off at her and Looney's shared home. At the jury trial on Looney's remaining charges, Connell and her friends testified that Looney started a fight by threatening Connell with his gun. Looney, on the other hand, testified that he never threatened Connell with his gun. Instead, Looney alleged that he had his gun with him because he had been contemplating suicide following his clash with Connell at the bar. Also, he alleged that he acted in self-defense and in defense-of-others, that is, defense-of-Connell, during the dispute that ensued between him and Connell's friends.

In Looney's initial appeal to this court, this court summarized Connell's and Looney's different versions of events as follows: "Connell's version of events

"When Connell got back to the house, she went inside and grabbed a container of cottage cheese from the refrigerator. As she walked into the living room, she heard a gunshot. As Connell went to ask Looney why he was using guns and mace, Looney backed her onto the couch, holding the gun between her eyes. Connell slammed the container of cottage cheese into Looney's face, grabbed her phone, and ran outside to call her friends to come back and pick her up. Looney followed her outside and tackled her to the ground. While they were outside, Connell's friends showed up. Edwards and McCoy approached Connell and Looney, walking calmly with their hands in the air. Connell was screaming and warned them that Looney was dangerous and had a gun. Eventually, they helped Connell get into their car.

"Connell and Edwards decided to return to the house to retrieve Connell's dog. When they were walking up to the house, Edwards saw Looney walking around to the front of the house, still brandishing his gun. Once they were inside, Edwards locked the door so that Looney could not come in and took Connell to the basement for her safety. Looney was yelling and unsuccessfully tried to kick in the door. Looney turned to McCoy, who was also outside the front door, pointed the gun at him, and told him that he would shoot him if he did not get the door open. When McCoy was unsuccessful at opening the front door, Looney hit him in the forehead with the nose of the gun.

"After realizing that neither the front nor the side door would open, Looney noticed Wells and O'Neil waiting in the vehicle parked on the street. Looney approached the vehicle and pointed the gun at Wells. O'Neil was on the phone with law enforcement. Looney told them that if anyone called the police, he would shoot everyone. He turned to O'Neil and told him that he better not be contacting the police, still threatening to shoot. Looney then ran back toward the house. A bleeding McCoy ran to the vehicle, told them to leave the area, and then ran back toward the house. O'Neil and Wells heard a gunshot as they were pulling away. O'Neil remained on the phone with 911 dispatch, narrating what he saw and heard.

"Looney made it to the side of the house right when Edwards was at the top of the stairs. Looney yelled for Connell to get out of the house and then fired shots into the house. A shot hit Edwards in the back of the head, and he fell backwards down the stairs. Connell heard someone at the door, ran upstairs, and saw McCoy, who called the police. Edwards survived but has significant long-term effects of his injuries.

"Looney's version of events

"According to Looney, about an hour after he almost attempted suicide, he saw a car pull up outside his house, and Connell got out. When Connell entered the house, she and Looney began arguing. Looney told Connell how upset he had been and that he had shot the couch instead of himself, but Connell did not believe him. Looney pointed out that Connell had come home without her engagement ring on. Connell asked for her phone and went outside, and Looney went into the bathroom and cried.

"When Connell came back in the house, the door opened behind her and Edwards ran into the house and grabbed her, picking her up and carrying her out the front door. Looney grabbed his gun and ran after them. Looney saw Edwards trying to put Connell in his car, heard Edwards yell for her to get in the car, and heard Connell yell that she was not going. Looney testified that he was terrified. He screamed and ran toward Connell as she broke loose of Edwards. Connell then ran into the house, with Edwards and McCoy running behind her. Looney pulled out his gun, pointed it at Edwards and McCoy, and told them to leave.

"Connell was also yelling at the men to leave, but Edwards came through the front door and entered the house. Looney pointed the gun at Edwards and told him to get out, but McCoy grabbed Looney from behind, pinning Looney's arms to his side. Looney fired two shots into the floor to scare McCoy, hoping McCoy would let him go. Instead, Edwards and McCoy dragged Looney out of the house and locked the front door. Looney could hear Connell screaming from inside and could see that she was on the floor. He tried to kick in the door.

"McCoy ended up outside the house with Looney. The two got into a fight, and Looney put the gun to McCoy's head and threatened to shoot him. Instead of shooting him, Looney hit McCoy on the head with the gun. After the scuffle, Looney ran to the side of the house, looked through the door, and saw Connell being dragged down the stairs. When he saw someone coming up the stairs, Looney shot through the side door. Not aiming at anyone or anything in particular, he shot as an instinctive reaction to having seen Connell being dragged down the stairs without making a sound. After shooting, Looney saw Edwards with a bloody face, bleeding from the head.

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